Citation Nr: 0509004
Decision Date: 03/25/05 Archive Date: 04/01/05
DOCKET NO. 03-23 748 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Newark, New Jersey
THE ISSUES
1. Entitlement to service connection for a claimed low back
disorder.
2. Entitlement to service connection for an eye disorder to
include refractive error and cataracts.
3. Entitlement to an initial evaluation in excess of 30
percent for the service-connected post-traumatic stress
disorder (PTSD).
4. Entitlement to an initial evaluation in excess of 10
percent for service-connected bilateral hearing loss.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Kedem, Counsel
INTRODUCTION
The veteran had active military service from February 1943 to
October 1945.
This matter comes to the Board of Veterans' Appeals (Board)
from a November 2002 rating decision of the RO, which granted
service connection for PTSD and bilateral hearing loss and
denied service connection for refractive error with cataracts
and a low back disorder.
The Board notes that by the November 2002 rating decision,
the RO granted service connection for tinnitus and assigned a
10 percent evaluation. The veteran initiated an appeal
regarding the initial rating but did not perfect his appeal,
and this issue, therefore, is not before the Board. See
generally 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2004)
(detailing the process by which RO decisions are appealed to
the Board).
The issues of service connection for a low back disorder and
an eye/visual disorder are addressed in the REMAND portion of
this document and are being remanded to the RO via the
Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The service-connected PTSD is shown to be manifested by a
disability picture that more nearly approximates that of
occupational and social impairment with reduced reliability
and productivity and difficulty in establishing effective
work and social relationships.
2. The service-connected bilateral hearing loss is
manifested by no more than level III hearing in the right ear
and level IV on the right.
CONCLUSIONS OF LAW
1. The criteria for the assignment of an evaluation of 50
percent for the service-connected PTSD are met. 38 U.S.C.A.
§§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130
including Diagnostic Code 9411 (2004).
2. The criteria for the assignment of an evaluation in
excess of 10 percent for the service-connected bilateral
hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107,
7104 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86 including
Diagnostic Code 6100 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
In November 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475,
114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002).
VCAA provides that the Secretary shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for benefits unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. 38 U.S.C.A. § 5103A (West 2002).
The Secretary of VA may defer providing assistance pending
the submission by the claimant of essential information
missing from the application. Id.
VCAA also contains provisions regarding the scope of notice
to which those seeking VA benefits are entitled. 38 U.S.C.A.
§ 5103 (West 2002).
Having reviewed the complete record, the Board believes that
there is ample medical and other evidence of record upon
which to decide the veteran's claims. The Board is unaware
of, and the veteran has not identified, any additional
evidence, which is necessary to make an informed decision on
these issues.
Thus, the Board believes that all relevant evidence that is
available has been obtained. The veteran and his
representative, moreover, have been accorded ample
opportunity to present evidence and argument on his behalf,
and the Board notes that he elected to forego his right to a
hearing before a hearing officer at the RO or before a
Veterans Law Judge.
Further, by a July 2002 letter and the July 2003 Statement of
the Case, he and his representative have been notified of the
evidence needed to establish the benefits sought, and he has
been advised via these documents regarding his and VA's
respective responsibilities as to obtaining that evidence.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Consequently, the Board concludes that VA's statutory duty to
assist the veteran has been satisfied.
The Board notes that seeking further development of the case
would serve no useful purpose. Soyini v. Derwinski, 1 Vet.
App. 540 (1991) (strict adherence to requirements in the law
does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran should be avoided).
VA has satisfied, as far as practicably possible, the notice,
assistance, and other requirements of VCAA, and any further
action would only serve to burden VA with no foreseeable
benefits flowing to the veteran.
Factual Background
In August 2001 the veteran filed a claim for, in pertinent
part, service connection for PTSD and bilateral hearing loss.
On August 2002 VA psychiatric examination report, the
examiner indicated that the veteran had no history of
psychiatric admissions. The veteran complained of intrusive
thoughts of war experiences, poor sleep, nightmares, and
flashbacks. According to him, he was hypervigilant and
easily startled. The veteran stated that he was retired but
formerly worked for Solomon Smith Barney as a portfolio
manager and got along well with his colleagues.
The veteran stated that he had a Bachelor's degree in
business administration and had never been married. He did,
however, have a few girlfriends in the past. He had no
children and lived with his mother most of his life for whom
he also cared. He lived alone at present and had contact
with his siblings and cousins. The veteran spent most of his
time at home, but he went to the health club twice a day and
talked to relatives. He indicated that he slept a lot.
On examination, the veteran was casually dressed. His mood
was neutral, and he was cooperative. His speech was normal,
and there were no perceptual problems. His thought process
and thought content were neutral.
There was no evidence of suicidal or homicidal ideation, and
the veteran was oriented to person, place, and time. Memory
was two out of three. Insight and judgment were fair as was
impulse control. The examiner noted that the veteran was
taking antidepressant medication.
The examiner observed that the veteran was a 79-year-old
single man with symptoms of PTSD. The examiner diagnosed
PTSD and assigned a global assessment of function (GAF) score
of 55 representing moderate symptomatology. The examiner
opined that the veteran was competent.
August 2002 VA audiologic examination results were as
follows:
HERTZ
1000
2000
3000
4000
Average
RIGHT
35
35
80
85
59
LEFT
35
40
85
85
62
Speech discrimination was 88 percent in the right ear and 80
in the left.
Service connection for PTSD and for bilateral hearing loss
was initially granted in a November 2002 rating decision.
With respect to the former, the RO assigned a 30 percent
evaluation, and regarding the latter, the RO assigned a 10
percent evaluation.
Increased Ratings
Disability evaluations are determined by the application of
the Schedule For Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991).
Where, as in the instant case, the appeal arises from the
original assignment of a disability evaluation following an
award of service connection, the severity of the disability
at issue is to be considered during the entire period from
the initial assignment of the disability rating to the
present time. See Fenderson v. West, 12 Vet. App. 119
(1999).
PTSD
The veteran's service-connected PTSD has been rated by the RO
under the provisions of Diagnostic Code 9411. 38 C.F.R.
§ 4.130.
The criteria for rating PTSD are as follows:
100 percent: Total occupational and social impairment, due
to such symptoms as: gross impairment in thought processes or
communication; persistent delusions of hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation or own name.
70 percent: Occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations judgment, thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence) spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships.
50 percent: Occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g. retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing effective
work and social relationships.
30 percent: Occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, and mild
memory loss (such as forgetting names, directions, recent
events). 38 C.F.R. § 4.130, Diagnostic Code 9411.
GAF scores are a scale reflecting the "psychological, social,
and occupational functioning on a hypothetical continuum of
mental health- illness." See Carpenter v. Brown, 8 Vet. App.
240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266,
267 (1996) [citing the American Psychiatric Association's
DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th
ed.), p. 32].
GAF scores ranging from 51 to 60 reflect more moderate
symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers). See 38 C.F.R. § 4.130
[incorporating by reference the VA's adoption of the American
Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL
FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating
purposes].
Although the veteran appears to have been a high functioning
portfolio manager with a major investment bank and is now
retired after a long career, the criteria for a 50 percent
evaluation for PTSD are met. 38 C.F.R. § 4.130, Diagnostic
Code 9411.
The veteran does suffer from intrusive thoughts, poor sleep,
nightmares and flashbacks. He is easily startled. The
latest evidence, however, suggests normal speech and thought
processes, fair insight and judgment, and only mildly
impaired short-term memory.
The evidence, moreover, does not imply difficulty
understanding complex commands, flattened affect, panic
attacks, impaired abstract thinking, or difficulty in
establishing effective relationships. In addition, the
veteran has maintained family relationships, is able to live
on his own, and has an established routine in retirement that
includes regular exercise.
The veteran's GAF score of 55, however, suggests moderate
symptomatology that would consistent with the criteria for a
50 percent evaluation.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned. 38
C.F.R. § 4.7. Thus, a 50 percent evaluation for PTSD is
assigned as the service-connected disability picture more
nearly approximates that occupational and social impairment
with reduced reliability and productivity and difficulty in
establishing effective work and social relationships.
The veteran is not entitled to a higher evaluation for his
PTSD. As explained, the Board's analysis indicates that the
veteran's PTSD symptomatology hovers between the criteria
necessary for a 30 percent evaluation and those necessary for
a 50 percent evaluation.
The Board, therefore, need not elaborate further on the lack
of compatibility between the veteran's PTSD symptomatology
and the very severe psychiatric symptoms entailed in the
criteria for a 70 percent evaluation or higher.
The veteran's PTSD symptomatology does not appear to have
fluctuated materially during the course of this appeal, and a
staged rating is not warranted. See Fenderson, supra.
Again, an evaluation in excess of 50 percent for the
veteran's PTSD is not warranted.
Hearing Loss
The veteran's service-connected bilateral hearing loss has
been rated 10 percent disabling by the RO under the
provisions of Diagnostic Code 6100. 38 C.F.R. §§ 4.85, 4.86.
Disability ratings for hearing loss are derived from a
mechanical application of the rating schedule to the numeric
designations resulting from audiometric testing as set forth
in 38 C.F.R. § 4.85. See Lendenmann v. Principi, 3 Vet. App.
345 (1992).
The rating schedule establishes 11 auditory hearing acuity
levels based on average puretone thresholds and speech
discrimination and provides that when the puretone threshold
at each of the four specified frequencies 1000, 2000, 3000,
4000 Hertz is 55 decibels or more, the rating specialist will
determine the Roman numeral designation for hearing
impairment from either Table VI or Table VIa, whichever
results in the higher numeral. Each ear will be evaluated
separately. When the puretone threshold is 30 decibels or
less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz,
the rating specialist will determine the Roman numeral
designation for hearing impairment from either table VI or
table VI(a), whichever results in the higher numeral. That
numeral will then be elevated to the next higher Roman
numeral. Each ear will be evaluated separately. 38 C.F.R.
§§ 4.85, 4.86.
Provisions for evaluating exceptional patterns of hearing
impairment are as follows:
(a) When the pure tone threshold at each of the four
specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz)
is 55 decibels or more, the rating specialist will determine
the Roman Numeral designation for hearing impairment from
either Table VI or Table VIa, whichever results in the higher
numeral. Each ear will be evaluated separately.
(b) When the pure tone threshold is 30 decibels or less at
1,000 hertz, and 70 decibels or more at 2,000 hertz, the
rating specialist will determine the Roman numeral
designation for hearing impairment from either Table VI or
Table VIa, whichever results in the higher numeral. That
numeral will then be elevated to the higher Roman numeral.
Each ear will be evaluated separately. 38 C.F.R. § 4.86.
Under the foregoing criteria, the veteran's right ear hearing
constitutes level III hearing loss. In the left ear, the
veteran suffers from level IV hearing loss. 38 C.F.R.
§ 4.85. Such hearing loss warrants a 10 percent disability
evaluation, and an increased rating for hearing loss must be
denied. Id.
As stated, the rating of hearing loss is a mechanical
function and leaves no discretionary room for the Board. See
Lendenmann, supra.
ORDER
An increased rating of 50 percent for the service-connected
PTSD is granted, subject to the law and regulations governing
the disbursement of VA monetary benefits.
An increased rating for the service-connected bilateral
hearing loss is denied.
REMAND
The August 2002 VA examinations of the eyes and spine reflect
diagnoses but not contain sufficient opinions regarding
etiology. Thus, the relevant medical examination reports
must be returned to the examiners for such opinions taking
into account the entire record and the character of the
veteran's service.
In the event that the August 2002 examiners are not available
or if further examination of the veteran is necessary, the RO
must schedule relevant VA examinations for diagnoses and
opinions regarding etiologies of all diseases and conditions
of the eyes and spine.
Accordingly, the case is REMANDED for the following
development:
1. The RO should contact the August 2002
VA examiners who conducted the
examinations of the eyes and spine. The
examiners should be asked to opine
regarding the etiologies of all diagnosed
conditions of the eyes and back taking
into account the veteran's medical
history and character of his service.
The examiners are asked to review the
claims file and to provide a rationale
for all conclusions.
2. If the above examiners are not
available or if further examination is
necessary, the RO should schedule VA
examinations of the eyes and back. All
disabilities of the eyes and back must be
enumerated and an opinion regarding the
etiology of each identified disability
must be provided. The examiners are
asked to review the claims file in
conjunction with the examinations and to
provide a rationale for all conclusions.
All necessary diagnostic tests, of
course, should be conducted.
3. Thereafter, the RO should
readjudicate the issues on appeal. If
any benefit sought remains denied, the
veteran and his representative should be
provided a Supplemental Statement of the
Case, which reflects consideration of all
additional evidence, and the opportunity
to respond thereto.
Thereafter, the case should be returned to the Board for the
purpose of appellate disposition, if indicated.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs